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DOUWE STIRS UP COFFEE ROW

The IPKat has received further word on the Advocate General's Opinion in Douwe Egberts NV v Westrom Pharma NV, Souranis Christophe and FICS-World BVBA, Case C-239/02 (blogged on IPKat, 11 December 2003). This Opinion, which has still not been rendered into English, now appears to deal with honest advertising practices rather than trade marks as such. Douwe, who made and sold DOUWE EGBERTS coffee in Belgium objected to the sale of Westrom's product "DynaSvelte Cafe". That product, composed of instant coffee, fructose and chromium, was marketed as a slimming aid. The jar, label and instructions mentioned the "weight control" or "slimming" qualities of the product as well as a statement that it had been developed by a "Dr Ann Wees Allen of the Glycaemic Research Institute". Douwe claimed that such endorsement breached various provisions of national law on marketing and labelling of such products. The Belgian court stayed the proceedings and referred questions to the ECJ relating to the interpretation of Directive 99/4 on the labelling of coffee extracts and chicory extracts, Directive 2000/13 on the approximation of the laws relating to the labelling, presentation and advertising of foodstuffs and Art.28 of the EC Treaty.

Advocate General Geelhoed advised the ECJ as follows: (i) Art.2 of Directive 99/4 means that the sale descriptions listed in its annex could be exclusively used for the products listed in that annex, while other descriptions (such as a commercial or a made-up name) can be used alongside those sale descriptions on the condition that they are not confused with them; (ii) Art.18 of Directive 2000/13 precludes the application of non-harmonised national provisions which prevent the use of references to weight loss, medical declarations and declarations of approval; (iii) Arts.28 and 30 of the EC Treaty prevents the application, to foodstuffs imported from other Member States, of non-harmonised national advertising laws which do not allow the use of references to weight loss and to recommendations, attestations, medical declarations or opinions or declarations of approval. Taking into account the links between the rules on labelling and those on advertising, it was for the national court to determine the extent to which advertising rules could be applied to the same references in respect of national products.

The IPKat thinks he'll stick to milk in future. Meanwhile he thinks that the AG's Opinion, which is a good deal more permissive than Douwe Egbert would like, has a corollary -- if producers are allowed to use all manner of terms and endorsements to market their products, consumers must take full responsibility for knowing what the terms used in advertising products actually mean. He suspects though that very few consumers carry a copy of Directive 99/4 around with them when they visit the supermarket.

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